202 F. Supp. 3d 376
S.D.N.Y.2016Background
- Photographer Alexander Flemming (Denmark) alleges Defendants used his copyrighted portrait of Louise Rams (Denmark) without authorization on Jeremih’s single "Don’t Tell ’Em" and related marketing, removing Flemming’s watermark and adding Def Jam’s mark.
- Plaintiffs assert primary copyright infringement and, alternatively, secondary (contributory and vicarious) infringement against Jeremih (Felton) and others; Rams asserts California right of publicity claims under § 3344 and common law.
- Felton moved to dismiss only the Second Claim (secondary copyright infringement) against him; UMG and Felton moved to dismiss Rams’s Fourth Claim (misappropriation of likeness).
- Court applied Rule 12(b)(6) plausibility standard (Iqbal/Twombly) and California choice-of-law rules (governmental interest test) to Rams’s publicity claim because the case transferred from California.
- The court found Plaintiffs plausibly alleged Felton had knowledge/participation or at least the ability to supervise and a financial interest in the use of the image, and that California law governs and supports Rams’s publicity claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contributory copyright infringement against Felton | Felton knew of and materially contributed to the infringement by authorizing/use and promoting the infringing album cover | Felton lacked facts showing knowledge or participation in indirect infringement; record label controls covers | Denied — allegations permit plausible inference Felton had (actual or constructive) knowledge and materially contributed via promotion/authorization |
| Vicarious copyright infringement against Felton | Felton had the right/ability to supervise selection/use of cover art and obtained a direct financial benefit from the image as the face of the single | Felton claimed the record company, not he, controlled album art and thus he lacked supervisory control or direct financial benefit | Denied — pleadings plausibly allege Felton had control/ability to supervise and a causal financial benefit from the use |
| Choice of law for Rams’s right of publicity claim | Apply California law (§ 3344/common law) because defendants distributed/marketed the image in California and California has interest in regulating conduct in its borders | Apply Denmark law (plaintiff domicile); Denmark’s law governs personal property rights and allegedly does not provide comparable statutory protection | Denied defendants’ choice-of-law request — court applied California law after governmental-interest analysis because Denmark did not show a true conflicting interest that would displace California law |
| Merits of Rams’s § 3344/common-law publicity claim | Rams alleges nonconsensual, knowing commercial use of her likeness in California causing injury and benefit to defendants | Defendants argued Danish law would bar or narrow recovery and that California’s statute protects primarily Californians | Denied dismissal — Rams plausibly alleged § 3344 and common-law misappropriation claims under California law |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state a plausible claim for relief)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Gershwin Publ’g Corp. v. Columbia Artists Mgmt., 443 F.2d 1159 (contributory infringement requires knowledge and material contribution)
- Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (vicarious liability where control and direct financial interest exist)
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (vicarious liability principles and financial benefit analysis)
- Ellison v. Robertson, 357 F.3d 1072 (constructive knowledge and vicarious/contributory infringement analysis)
- Downing v. Abercrombie & Fitch, 265 F.3d 994 (California governmental-interest choice-of-law test)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (practical control and ability to supervise in vicarious liability analysis)